Edward B Foley – The Briefing Roomhttp://moritzlaw.osu.edu/briefing-room
Moritz College of LawWed, 14 Feb 2018 22:34:13 +0000en-UShourly1https://wordpress.org/?v=4.7.9Professor Edward B. Foley earns fellowshiphttp://moritzlaw.osu.edu/briefing-room/faculty/professor-edward-b-foley-earns-fellowship/
Mon, 25 Jan 2016 18:54:02 +0000http://moritzlaw.osu.edu/briefing-room/?post_type=faculty_news&p=5563Professor Edward B. Foley, the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law and Director of Election Law @ Moritz, was awarded a fellowship from the Stanford University Center on Democracy, Development and the Rule of Law for winter 2016. As a fellow, Foley will be working on a project about ethics of electoral competition.

“One of the questions I am exploring is ‘what is fair play between political candidates and parties,’” Foley said. “We cannot rely on the government to be an adequate umpire when it comes to campaign advertising. In fact, because of the First Amendment, the government cannot be an umpire in these situations.”

In addition to campaign advertising, Foley will also explore moral issues that arise in counting votes, changing voting rules, gerrymandering, ballot manipulation, and violating unenforced campaign finance rules. As part of the fellowship, Foley will give a lecture on his work on the project. He also plans on using the research to write a book on electoral morality.

]]>Faculty experts weigh in on recent U.S. Supreme Court caseshttp://moritzlaw.osu.edu/briefing-room/faculty/u-s-supreme-court-2015-round-up/
Wed, 01 Jul 2015 19:00:22 +0000http://moritzlaw.osu.edu/briefing-room/?post_type=faculty_news&p=4779It has been a big month for those who keep a close watch on the decisions of the U.S. Supreme Court. Moritz faculty can often be found glued to websites like scotusblog.com on decision days, and they are frequently asked to share their insights, analyses, and opinions with local, national, and international news sources.

Here is a rundown of recent Supreme Court decisions, along with quotes by our faculty members, and links to media coverage they have received.

Obergefell v. HodgesTopic: The constitutionality of same-sex marriage bans in four states.Faculty Expert:Marc Spindelman, Ruth ColkerTheir take: The Court determined that a state must issue marriage licenses to two people of the same sex, and recognize a marriage between two people of the same sex when a marriage was lawfully licensed and performed out of state, with nationwide implications.

Marc Spindelman: “Today, the once-impossible-to-imagine finally officially becomes a new way of life as a matter of constitutional law: formal equality, liberty, and dignity in political life for same-sex couples and their families. For LGBT persons, this is a new high watermark in our constitutional system. The work that remains to be done in order to deliver fully on the Constitution’s promises of equality and freedom – and work does remain after today – must be politically achieved. But whatever political headwinds today’s decision and that work may face, will be confronted in the changed climate that today’s decision helps to usher in.”

Ruth Colker: “Justice Kennedy’s majority opinion (with no separate concurrences) relies on both liberty and equality arguments to conclude that same-sex marriage must be recognized. His emphasis on liberty arguments may be good news for future abortion cases, that also rely on liberty arguments. His reliance on liberty also would make it impossible for the four dissenters to have joined his reasoning.”

King v. BurwellTopic: The Patient Protection and Affordable Care Act (ACA).Faculty expert:Christopher J. WalkerHis take:King v. Burwell upheld federal subsidies under the Affordable Care Act. Professor Walker provided the following quote about the case: “This is a big win for the Obama Administration in a case that most felt could go either way after the Court heard the case earlier this year,” he said. “The way the Court reached its decision broke new ground in administrative law. Many expected – myself included – that if the Court ruled for the Government, it would do so by applying the familiar Chevron deference regime – finding that the congressional statute is ambiguous and deferring to the government’s reasonable interpretation of that law. But, instead, the Chief Justice, writing for the six-Justice majority, ruled that Chevron deference does not apply to questions like this that concern deep economic and political significance.

Instead, it is the Court that has ultimate authority to interpret such statutory provisions. This has at least two major ramifications for the future of Obamacare and the regulatory state, more generally. First, because the Court did not apply Chevron deference but interpreted the statute itself, a subsequent administration – say, a Republican administration – could not interpret the statute to not allow subsidies in exchanges established by the Federal Government. Second and more broadly, the Court has chipped away on the extreme deference that courts traditionally give to federal agency interpretations of law.”

Johnson v. United StatesTopic: The drug cocktail used during lethal injections.Faculty expert:Doug BermanHis take: The U.S. Supreme Court issued its opinion regarding the drug cocktail used during lethal injections and Berman saw it as a loss for both lethal injection and death penalty abolitionists more generally: “States eager to move forward with challenged execution protocols got a big win on the merits from the Supreme Court this morning,” Berman said. “Watching the strong debate between the justices on this case was fun, but the fact that seven current justices apparently do not question the death penalty’s essential constitutionality, including the five youngest Justices, suggests to me that abolitionists still have a lot more work to do before they can reasonable hope to see a majority of justices find compelling a categorical constitutional ruling against capital punishment in all cases.”

He added, “The modern US Supreme Court is, at least on sentencing issues, the most pro-defendant appellate court in the nation. I suspect that there are likely many hundreds, and perhaps even thousands, of current federal prisoners who do have strong Johnson claim. And the potential legal consequences of a strong Johnson claim could be profound because it may mean that a prisoner who previously had to be sentenced

Michigan v. Environmental Protection AgencyTopic: Regulating mercury emissions from power plants.Faculty expert:Cinnamon CarlarneHer take: An environmental law opinion written by one of the Court’s most conservative justices – Scalia – sent fear down the spines of climate change advocates worldwide. But, Carlarne found a glimmer of hope in the opinion.

“Today’s decision in Michigan v. EPA constitutes a blow, but not a knockout punch, to EPA’s ability, under the Clean Air Act, to regulate emissions of mercury and other hazardous air pollutants from power plants,” Carlarne said.

“The Court questions not just the appropriateness of EPA rule, but also the rationality of the policy. The decision sends EPA back to the drawing board in terms of considering costs at the initial stage of deciding whether or not to regulate hazardous air pollutants from power plants. But, EPA is prepared. In considering the level of regulation, EPA has already quantified both the costs of regulation and the numerous direct and co-benefits of regulation and these benefits support the regulations that EPA has proposed. EPA may have lost the first round, but it is likely to win the fight.”

Arizona State Legislature v. Arizona Independent Redistricting CommissionTopic: The constitutionality of independent redistricting commissions.Faculty expert:Edward B. “Ned” Foley, Dan TokajiTheir take: Both Foley and Tokaji applauded the Court’s support of the use of independent commission to draw Congressional district lines – a move meant to reduce the gerrymandering of districts.

Ned Foley: “Enabling states to employ independent commissions for congressional redistricting may ultimately prove unsuccessful in resisting the scourge of partisan gerrymanders. But massaging the Constitution’s text to give the states the chance to try this approach, without having to jump through the hoops necessary for a constitutional amendment, is a decision that vindicates the reason why we have the Constitution in the first place: to provide a workable structure of government through which the American people can continue to conduct their collective experiment in self-government.”

Dan Tokaji: “Today’s decision means that the people have the power to stop gerrymandering through direct democracy. And it leaves the State of Ohio without any more excuses for avoiding congressional redistricting reform.”

“This case will have important ramifications far beyond hotel registries. In today’s world, there are millions of companies that hold our personal information, from insurance companies to internet service providers,” he said. “Often, the government seeks to obtain our information from these third parties, and up until now it has been unclear what rights these companies have to object to these requests if the companies do not want to cooperate. But, today’s ruling gives those third party companies stronger rights to object. This means that if a company such as Google or AT&T refuses to cooperate with government investigators who are seeking our personal information, it will be significantly harder for the government investigators to force those companies to turn over that information. In this way, the Patel ruling is an important broadening of our privacy rights–assuming that the companies that control our information decide they do not want to cooperate with law enforcement officials.”

Texas Department of Housing and Community Affairs v. The Inclusive Communities ProjectTopic: The Fair Housing Act (FHA).Faculty expert:Ruth ColkerHer take: The Court was asked to decide whether or not the Fair Housing Act allows for lawsuits based on whether a law or policy has a discriminatory effect – even though the discrimination may have not been purposeful – since discrimination is rarely stated as an intent. The Court ruled that lawsuits based on such complaints, known as “disparate impact,” are lawful, and Colker said, while the law is often used in racial discrimination cases, it also has importance to those with disabilities.

“The Texas FHA case is very important to the disability community,” Colker said. “Disparate impact is an argument often used to strike down discriminatory zoning ordinances that preclude group housing for those with disabilities. Previously, the Supreme Court ruled in City of Cleburne v. Cleburne Living Center that restrictive zoning ordinances can violate the constitutional rights of individuals with disabilities. The case was a disparate impact case involving the negative effects of zoning laws on the ability of the disability community to build group homes in neighborhoods that otherwise house single-family homes. The FHA was amended in 1988 to codify the City of Cleburne decision and this law is used to challenge zoning laws that have a disparate impact against people with disabilities. Group homes are crucial to the integration of people with disabilities into the community so they can avoid segregated, institutionalized settings. Today’s Fair Housing Act decision retains the vitality of the disparate impact theory to the benefit of all groups covered by the Fair Housing Act, including individuals with disabilities.”

Ohio v. ClarkTopic: Hearsay and the use of an out-of-court made by a child to a teacherFaculty expert:Ric SimmonsHis take: A win for child advocates nationwide.

“In Ohio v. Clark, the United States Supreme Court provided much-needed clarification about when an out-of-court statement can be used in court against a criminal defendant,” Simmons said.

“This case will have a dramatic impact in child abuse cases, since out of court statements by children will now routinely be admitted in court even if the child cannot testify. It also allows states like Ohio more flexibility in setting their own rules for when hearsay evidence is admissible in court without violating the federal constitution. Generally the Constitution forbids the admission of hearsay statements because the speaker cannot be cross-examined. The Supreme Court’s decision will allow prosecutors to admit these statements more often.”

]]>Foley writes op-ed in New York Times for Election Dayhttp://moritzlaw.osu.edu/briefing-room/faculty/foley-writes-op-ed-in-new-york-times-for-election-day/
Tue, 04 Nov 2014 19:16:23 +0000http://moritzlaw.osu.edu/briefing-room/?post_type=faculty_news&p=3627Prof. Edward B. Foley, the Charles W. Ebersold and Florence Whitcomb Ebersold Chair in Constitutional Law, and director of Election Law @ Moritz, co-authored an op-ed in the New York Times on why the safety net of provisional voting is particularly important right now.

“Provisional ballots can work to prevent disenfranchisement by an invalid state law,” he and Joshua A. Douglas argue. “They are the ultimate stopgap in protecting the fundamental right to vote. Poll workers must provide them; voters must demand them. The stakes could not be higher: In a 2016 swing state, they could even determine the outcome of the presidential election.”

]]>Foley pens op-ed in Roll Callhttp://moritzlaw.osu.edu/briefing-room/faculty/foley-pens-op-ed-in-roll-call/
Tue, 15 Oct 2013 21:19:25 +0000http://moritzlaw.osu.edu/briefing-room/?post_type=faculty_news&p=1881Professor Ned Foley, director of Election Law @ Moritz, wrote an op-ed in Roll Call recalling an 1877 congressional gridlock and how a speaker of the house went against his party to save the day, and perhaps the country. Foley argues there could be lessons in this historical tale that could help today’s congressional leaders break the impass on the government shutdown and debt ceiling. Read the full op-ed on Roll Call.
]]>University trustees promote faculty, approve appointmentshttp://moritzlaw.osu.edu/briefing-room/faculty/university-trustees-promote-faculty-approve-appointments/
Mon, 23 Jul 2012 18:41:49 +0000http://moritzlaw.osu.edu/news/?post_type=faculty_news&p=417COLUMBUS, Ohio – The Ohio State University Board of Trustees approved multiple appointments and promotions for faculty members of the Michael E. Moritz College of Law.

At their June meeting, the trustees approved the following:

Cinnamon Carlarne was promoted to the rank of associate professor with tenure, effective Sept. 1. A leading expert in environmental law and climate change law and policy, Carlarne’s scholarship focuses on the evolution of domestic and international environmental governance and includes a book on comparative climate change law and policy with Oxford University Press. Carlarne earned her J.D. from the University of California, Berkeley, and she holds a B.C.L. and master’s degree in environmental change and management from the University of Oxford. She is on the editorial board for the Climate Law journal and the newly established Transnational Environmental Law Journal.

Sarah Rudolph Cole was appointed the John W. Bricker Professor of Law, effective July 1. A graduate of the University of Chicago Law School, Cole practiced labor and employment law with firms in Seattle and Chicago before joining the faculty at Creighton University School of Law. Cole is the director of the Program on Dispute Resolution at Ohio State, where she focuses her research on legal issues and policy that have arisen due to increased use of alternative dispute resolution. She is the co-author of the leading treatise in the field of mediation and one of the leading dispute resolution casebooks in the country.

Edward B. Foley was appointed the Chief Justice Thomas J. Moyer Professor for the Administration of Justice and the Rule of Law, effective July 1. He is the director of Election Law @ Moritz, the nonpartisan research, education, and outreach program that focuses on issues pertaining to how elections are held. One of the nation’s preeminent experts on election law, Foley teaches and writes in all areas of the law, including ways to improve resolving disputed elections. He has been asked to lead a new American Law Institute project on election law. A graduate of Columbia Law School, Foley clerked for Justice Harry Blackmun of the United States Supreme Court and, in 1999, served as the State Solicitor in the office of Ohio’s Attorney General.

Stephanie Hoffer was promoted to the rank of associate professor with tenure, effective Sept. 1. A graduate of Northwestern University School of Law, she also received her LL.M. in taxation from New York University School of Law. Hoffer has practiced in the tax department of Squire, Sanders & Dempsey L.L.P. and clerked for Judge Alice M. Batchelder of the U.S. Court of Appeals for the Sixth Circuit. Her research focuses on international and comparative taxation, tax-exempt and governmental entities, and commercial transactions. She teaches International Taxation, Tax Policy, and Contracts.

Associate Dean for Academic Affairs Garry Jenkins was promoted to the rank of professor, effective Sept. 1. He specializes in law and philanthropy, corporate social responsibility, corporate governance, and civil rights in education. Jenkins also is the co-director of the College’s Program on Law and Leadership, a multifaceted education and development initiative to advance the theory and practice of leadership among lawyers. A graduate of Harvard Law School and Harvard Kennedy School, Jenkins was chief operating officer and general counsel of The Goldman Sachs Foundation. He serves on the governing boards of his undergraduate alma mater, Haverford College, and the American Civil Liberties Union of Ohio.

Marc Spindelman was appointed the Isadore and Ida Topper Professor of Law, effective July 1. A graduate of the University of Michigan Law School, Spindelman’s scholarship focuses on certain problems of inequality, chiefly in the context of sex and death. He regularly teaches courses on Family Law, Constitutional Law, Advanced Constitutional Law, Bioethics and Public Health Ethics, and Sexual Violence. Spindelman is consulted regularly by the press on a range of subjects, including constitutional law, the law and ethics of death and dying, and lesbian and gay rights.

Joseph B. Stulberg was appointed the Michael E. Moritz Chair in Alternative Dispute resolution, effective July 1. He has been active in the field of alternative dispute resolution as a practitioner, scholar, and teacher since 1973. He has mediated disputes of national significance and has led the design and implementation efforts of numerous court-annexed, agency-based, and school mediation programs. Stulberg earned his J.D. from New York University School of Law and his Ph.D. in moral philosophy from the University of Rochester. Prior to his arrival at Ohio State in 1998, Stulberg formed the country’s first LL.M. Program in Dispute Resolution at the University of Missouri-Columbia School of Law.

]]>Berman, Davies, Foley awarded prestigious professorshipshttp://moritzlaw.osu.edu/briefing-room/faculty/berman-davies-foley-awarded-prestigious-professorships/
Thu, 06 Oct 2011 16:40:35 +0000http://moritzlaw.osu.edu/news/?post_type=faculty_news&p=1007Three distinguished members of The Ohio State University Moritz College of Law have been awarded professorships, as recently announced by Dean Alan C. Michaels.

Professor Douglas A. Berman is the Robert J. Watkins/Procter & Gamble Professor of Law. His principal teaching and focus is in the area of criminal law and criminal sentencing, though he does have practice in the fields of legislation and intellectual property. He is co-author of a casebook, Sentencing Law and Policy: Cases, Statutes and Guidelines, and co-managing editor of the Ohio State Journal of Criminal Law. He also is the sole creator and author of the widely-read and oft-cited web log, Sentencing Law and Policy, which receives more than 100,000 page views per month and has been covered by The Wall Street Journal, Legal Affairs magazine, Lawyers Weekly USA, Legal Times, Columbus Monthly, and other media.

Sharon L. Davies is the John C. Elam/Vorys Sater Professor of Law. Her primary research focus is in the area of criminal law and procedure. In 2010, Oxford University Press published her book Rising Road: A True Tale of Love, Race, and Religion in America, which recounts the revenge murder of a Catholic priest over an 18-year-old girl’s conversion to Catholicism and her marriage to a Puerto Rican migrant. Her articles have been published in a variety of leading journals, including Michigan Law Review, Duke Law Journal, Southern California Law Review, and Law and Contemporary Problems. She is co-author of the leading treatise on health care fraud, Medicare and Medicaid Fraud and Abuse.

Professor Edward B. Foley is the Isadore and Ida Topper Professor of Law. As the director of Election Law @ Moritz, he is one of the nation’s preeminent experts on election law. His current research focuses on improving the processes for resolving disputed elections, and he has been asked to lead an American Law Institute project on election law. He has published scholarly articles, including The Founders’ Bush v. Gore: The 1792 Election Dispute and Its Continuing Relevance.

]]>Professor Foley Testifies Before U.S. Senatehttp://moritzlaw.osu.edu/briefing-room/faculty/professor-foley-testifies-before-u-s-senate/
Mon, 01 Feb 2010 19:50:19 +0000http://moritzlaw.osu.edu/news/?post_type=faculty_news&p=476OSU Moritz College of Law Professor Edward B. Foley has been called to testify before the United States Senate Committee on Rules and Administration in a hearing entitled “Corporate America vs. The Voter: Examining the Supreme Court’s Decision to Allow Unlimited Corporate Spending in Elections” on Tuesday, Feb. 2, 2010.

Professor Foley is the Director of Election Law @ Moritz and is the Robert M. Duncan/Jones Day Designated Professor of Law. The hearing is in response to the U.S. Supreme Court’s recent decision in Citizens United v. Federal Election Commission, which overturned some restrictions on corporate spending in political campaigns. To read Professor Foley’s thoughts on the decision, please see his recent blog post.

]]>Lessons learned: Looking back on Election Day 2008http://moritzlaw.osu.edu/briefing-room/faculty/lessons-learned-looking-back-on-election-day-2008/
Thu, 05 Mar 2009 17:51:53 +0000http://moritzlaw.osu.edu/news/?post_type=faculty_news&p=680In the days leading up to the Nov. 4 elections, the tension in the fourth floor faculty offices at The Ohio State University Moritz College of Law continued to build. But the pressure was not about who would win, but rather: would the election run smoothly? Would polling places be able to handle the predicted record turnout, which included many first-time registrations and voters? Would a winner be declared?

“A lot of progress has been made in the last eight years,” said Dan Tokaji, associate director of Election Law @ Moritz and an associate professor of law. “Voting technology did a better job of accurately recording a voter’s intent than in 2000. States did a better job of handling provisional ballots and there were fewer disputes than in 2004. Congress passed the Help America Vote Act (HAVA) in 2002 and the first election after a big change in law usually equals problems. But it is normally smooth the next time, and that is exactly what happened in 2008. Yet states still had great difficulty in the area of voter registration which, not coincidentally, has been subject to new federal requirements since 2004.”

In the months (well, actually years) leading up to the election, the Election Law @ Moritz team spent thousands of hours compiling data, reviewing statutes, and analyzing previous decisions to prepare for Election Day. The result: one of the world’s most thorough and informative election law web site available. The team created more than 50 different maps comparing various election law statutes nationwide, catalogued every potential election administration problem, gathered a mountain of legal documents and court filings, and blogged and updated the site daily.

“In the months leading up to the election, there were lawsuits in Ohio regarding the five-day window, in Indiana and Georgia regarding voter identification and in multiple states regarding voter registration and early voting,” said Edward B. Foley, director of Election Law @ Moritz and the Robert M. Duncan/Jones Day Designated Professor of Law.

While, in general, the election of America’s 44th president did run smoothly, there were significant problems in some states and localities. “These problems were masked by Obama’s decisive victory, but the problems are lurking in the system in the event that the next presidential election is much closer,” Foley said. Specifically, Foley points to the 200,000 provisional ballots cast in Ohio, which would be the basis for a protracted battle if Obama’s bid for reelection in 2012 is similar to the Ford-Carter election of 1976, for example.

In addition, the citizens of Minnesota watched the inauguration occur, the stimulus package pass, and more than 1,000 new pieces of legislation be introduced from the sidelines as they waited for the courts to determine the winner of one of their senate seats.

Election ’08 – Lessons Learned

Minnesota’s experience this year, according to Foley, should ring at least two alarm bells for anyone concerned with assuring a smooth presidential election in 2012. First, the rate at which absentee ballots are rejected is alarmingly high in many states around the country, and as Minnesota shows their rejection can serve as the basis for extended litigation over which candidate won. Second, neither Congress nor the states have put in place a feasible timetable for resolving these kinds of disputes before the need to inaugurate a new president on Jan. 20.

“Just imagine if the Minnesota recount involved the presidency, and not just a Senate seat,” Foley said. “And it’s not just Minnesota that needs time to conduct recounts. No state can complete a proper recount in a close election by the deadline that Congress has given for the Electoral College to meet.”

Lesson One: Early Voting is Great, Except When It Is Not

More than a dozen states used early voting for the first time, expanded their early voting programs, or highly publicized their early voting options. And voters embraced it.

“More and more voters are choosing to vote at a place other than their polling place on Election Day,” Tokaji said. “This is convenient for voters and can reduce the pressure on polling places. But it is also a huge challenge because voters tend to make mistakes with these alternative voting methods and there is no poll worker helping them through the process. They mismark ballots, mail ballots late, forget to sign ballots, and forget to include or do not have the required identification.”

While early and absentee voting reduced lines on Election Day, in many places, including central Ohio, voters just exchanged long Election Day lines for a long line at early voting sites. In central Ohio, only one early voting site was open in the 30 days prior to the election and the wait was upwards of eight hours as the line twisted its way outside the building. Voters casting absentee by mail had a significant number of their ballots eventually rejected because of a problem with the ballot. For example, more than 35,000 absentee ballots in Colorado were in jeopardy of being disqualified because voters did not properly enclose a photocopy of the right form of identification.

“One of the issues with early voting is that it is not easy for the absentee voter to ensure their ballot was properly received, processed, and accepted,” Foley said. “There is no automatic notification that a ballot has been rejected, which could allow a voter a “do-over” on Election Day by recasting a proper ballot at their designated polling place.”

Lesson Two: Voter Registration Is Still a Weak Point in the System

Unlike previous years when the counting of ballots and long lines were the sticking point, the 2008 presidential election’s problems involved getting voters properly registered in the first place.

“Voter registration is a major unresolved issue,” Tokaji said. “There is a massive influx of new voters and a major new federal law. The matching feature of HAVA is very challenging for some states and some states are still not in compliance.”

The majority of lawsuits in the 2008 election revolve around the issue of voter registration. Almost every point in the process was susceptible to criticism. Several private groups, including the Association of Community Organizations for Reform Now (ACORN) and Citizen Action, came under fire in multiple states, including the key swing states of Ohio, Indiana, and Pennsylvania, for reportedly falsifying voter registrations to meet quotas set for employees.

“While we saw vigorous attacks on ACORN and other groups, the cases brought against them weren’t successful,” Tokaji said. “The fact that there’s inaccurate or incomplete information on a registration card doesn’t mean that there’s been voting fraud. While a large number of inaccuracies can bog down the system, it has not been proven to lead to ineligible people voting.”

Perhaps more problematic were several states’ problems with the matching provisions of HAVA. The HAVA matching standard requires states to check voter registrations with another state database, such as a driver’s license database. But the law was unclear how this should be done and many states, including Ohio, had difficulty getting different computer networks to communicate and account for differences in how data is entered and stored. For example, accounting for suffixes, middle names and initials, name changes, and maiden names, as well as street names and abbreviations can cause a registration to be designated as invalid.

In addition, there was also concern about voter registration database purges. Guidelines called for voters who had not voted in the past two federal elections to be automatically deleted. Under this rule, an Ohio voter who did not vote in the 2006 senate race and did not vote in the 2004 presidential race because of long lines, would automatically be deleted. In Colorado, this rule led to more than 30,000 voters being initially deleted, but a judge later restored those names to the voter registration lists in the state. Florida also saw litigation, challenging its alleged “no match, no vote” policy.

“Some things to look at include expanding Election Day registration, which is used in nine states and is a safety net for voters because they can correct wrong information the day of,” Tokaji said. “In addition, a universal system of registration is used in Canada and other countries and switches the burden from the voter to the government.”

Lesson Three: Provisional Ballot Clarification Is Needed

Under HAVA, the provisional ballot was created to ensure that voters who went to the polls on Election Day had a way of formally indicating their selections if they incurred problems and were not eligible to cast an actual ballot. Provisional ballots are used when a voter does not bring proper identification to the voting precinct, goes to the wrong voting precinct on Election Day, or incurs some other problem. Many states, including Ohio, give voters a specific timetable to prove they were in fact eligible to vote.

“A provisional ballot says ‘this is a ballot with a potential problem’,” Foley said. “After Election Day, these ballots must be sorted and verified. Legally, they cause huge problems as sides argue about whether they should be counted. In 2008, provisional ballots weren’t an issue in the presidential election just because the margin of victory was significant. They still remain the red herring of our election system.”

In Ohio, 5.08 percent of the ballots cast on Election Day at the polls were provisional ballots, up from 3.16 percent in 2004. Statewide, about 80 percent of the provisional ballots cast were eventually deemed eligible and were counted, up from 78.4 percent in 2004. Had Ohio’s electoral votes counted on the outcome of these 200,000 or so provisional ballots, America would have again waited weeks to find out the winner of the presidential election.

Lesson Four: Partisanship Still Remains

In close elections, both parties have learned that understanding the rules and minutia of election administration and using those laws to their advantage can swing the results of an election.

“There still are issues of partisanship in election administration,” Tokaji said. “There are partisan secretaries of states overseeing elections in some states and partisan local election officials. It creates questions about whether an election is being handled in an even-handed and fair manner. We need to examine a more nonpartisan structure.”

Almost all of the pre-election litigation had the flavor of partisanship. In Ohio, the Republican Party filed suit against the Democratic secretary of state over voter registration; in Colorado, Democrats sued the Republican secretary of state over purges to voter registration rolls; and in Florida, Democrats sued Republicans to attempt to prevent alleged “frivolous” polling place challenges that lead to provisional ballots being cast.

“We have seen the inevitable problem whenever a state’s chief elections officer, charged with implementing the voting rules, is an elected partisan official. This problem is structural, and it exists whether the officer is an elected Democrat or an elected Republican,” Foley said. “The problem merely may be one of appearances, rather than reality, but that is enough in the elections business. The dynamic now exists in which the other political party attempts to undermine the credibility and legitimacy of the state’s chief elections officer, so that it can win back the position. Nonetheless, there will be no truly successful reform of the voting process unless and until our nation figures out a way to rid itself of this structural defect in our system.”

Lesson Five: A Final Arbitrator of Disputes Must Be Clarified

As was witnessed in the Minnesota senate race, sometimes the result of an election depends on the outcome of the smallest number of challenged ballots. When the results depend on a handful of ballots, the question becomes: who makes the final determination?

“At some point in our nation’s future, there will be another incredibly close presidential election, when the winner of the Electoral College depends on the outcome in a single state and the result in that single state depends upon the resolution over a dispute over the counting of ballots for presidential electors there,” Foley wrote in a blog posting. “When that occurs, all the reform of the voting process will not matter — including the institutional reform of nonpartisan chief election officers in each state — unless Congress has also reformed the institutional mechanism for resolving this kind of dispute over presidential ballots.”

This past fall, Foley proposed the idea of creating a nonpartisan, specialized election court to be the final arbitrator of election disputes in the country. A simulated adjudication of this specialized court was held in Washington, D.C., in conjunction with the AEI-Brookings Election Reform Project and the Georgetown University Law Center. Under the proposal, a three-judge panel including one Republican, one Democrat, and a third person selected and agreed upon by the first two, would act as the final arbitrator.

“In the aftermath of Bush v. Gore, it is unclear whether as a practical matter the institution that will resolve a future dispute over presidential ballots will be the U.S. Supreme Court again or, instead, Congress according to the arcane and imperfect procedures of the Electoral Count Act, which was adopted in the wake of the crisis of 1876,” Foley said. “This institutional uncertainty is unsettling — and undesirable. It is the result of the 12th Amendment failing to specify what should happen when this kind of dispute arises, a defect noted presciently by Joseph Story in the 1830s but we have yet to rectify. While it might not seem the most pressing reform given the odds each year against another meltdown scenario, as a nation we have suffered considerably the two times that this deficiency has mattered: 1876 and 2000. It would be preferable that, whenever this kind of situation happens again, we have already taken the steps to be better equipped with a clear and fair method of resolving this kind of dispute.”

Lesson Six: More Work Is Needed

While the spotlight did not fall on election administration this year as brightly as it has in the past two presidential elections, that does not necessarily mean the system is fixed and optimal.

“What I would like to see is a decade-long agenda for fixing our election system. I call this agenda ‘2020 Democracy: Developing and Implementing a Vision for our Nation’s Voting Process,’” Foley said. “Consider it a gift to the children born in 2000, that year of the hanging chad. For the first presidential election in which these first-born citizens of the 21st century can vote, we will bequeath to them a truly state-of-the-art electoral process. If the nation could actually achieve that objective, it would be worth waiting for; and if the 111th Congress sets in motion the process that yields this result, it will deserve the historical credit.”

Among Foley’s top concerns for the short-term is the length of time it takes some voters to cast their ballots.

“It is truly unconscionable the amount of time that many voters, particularly African-Americans, needed to wait in line this past election in order to cast their ballots,” Foley said. “On Election Day, there were reports of voters in several states — including Missouri, Pennsylvania, and Virginia — waiting five, six, or seven hours to vote. There was even one CNN report of a Pennsylvania voter waiting 11 hours. Missouri’s secretary of state has expressed the fear that some voters were unable to withstand the excessively long lines in that state, and since the presidential election in Missouri was undecided after Election Day, it is conceivable that disenfranchisement caused by the inordinate waiting times could have ended up being decisive on which candidate won that state. But voting should not be such an ordeal. Congress should set a national standard that no voter should have to wait more than one hour to cast a ballot and then work with states on ways to implement this standard.

A change from Election Day to Election Week, at least for presidential elections, would seem a sensible place to start. This move would differ from ’early voting,’ as currently practiced in many states, where only one location is available for voting in each county prior to Election Day. This year we saw five-hour and longer lines at these single ‘early voting’ locations. The different concept of Election Week, by contrast, would consist of multiple ‘voting centers’ dispersed throughout a county, which would be open 12 hours per day, for seven days. Surely, voters could find a time within their busy schedules to visit one of these vote centers and cast a ballot without having to wait more than one hour. It would be more expensive than our current practice, but this year demonstrates that there is a constitutionally minimum level of expenditure necessary in order to prevent voters from having to suffer unreasonably long lines at polling places. Bottom line on this point: certainly by 2012, when the United States next votes for president, Congress should have put in place a solution to the long-line problem we saw this year.”